by Patricia D. Henderson, Esq. and Cicely Nedd-Thomas, Esq.
The Texas legislature amended the family code effective September 1, 2001, to allow for the "collaborative" approach to divorce. This new approach to divorce in Texas allows the parties and their attorneys to enter into agreements, which permits their case to be conducted under the collaborative law approach and thereby following certain procedures.
Firstly, the attorneys and parties agree in writing to use their best efforts and make a good faith effort to resolve the dispute without resorting to litigation.
Why should parties use the collaborative approach to divorce? Because approximately 95% of all family law cases settle prior to trial. A typical scenario in most cases follows the following course; the parties' community estate has exhausted its assets on attorney fees and ongoing lengthy litigation costs, thereby forcing the parties to finish with bloodshed and an agreement in which neither party can claim a victory.
The collaborative approach needs two attorneys who have been trained in the collaborative divorce process so that the meeting between the parties and the attorneys does not become adversarial; so that the parties and their attorneys can agree to resolve conflicts through a series of settlement conferences. These settlement conferences may include experts, mediators or some other form of dispute resolution technique.
Many clients today have become "educated consumers" when faced with legal services. Clients tend to be more knowledgeable and have chosen control and privacy when it comes to an open court battle where the judge ultimately controls the division of their family as well as their assets. These clients tend to choose the collaborative approach to their divorce over a lengthy and expensive litigation forum.
In many family law cases, even the agreed divorces can become expensive before a final agreement can be reached.
The collaborative approach begins with some ground rules, by which both parties must abide. After the ground rules are set, both parties are required to complete a sworn inventory under oath. Any party who fails to disclose any of the assets on the sworn inventory will allow the other spouse to receive 100% of the non-disclosed property asset.
Both parties can also rely on neutral 3rd parties, such as certified financial advisors, certified public accountants, appraisers and family therapists. Collaborative law allows the parties to end the marriage in an orderly fashion by focusing on the future and not the faults of the past. So who is the true winner with the collaborative approach to divorce? You are!
|
